Citation Nr: 1302127
Decision Date: 01/18/13 Archive Date: 01/23/13
DOCKET NO. 08-31 516 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia
THE ISSUE
Entitlement to service connection for narcolepsy.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
M. Peters, Associate Counsel
INTRODUCTION
The Veteran had active duty service from August 1996 to January 1999.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied reopening a claim of service connection for narcolepsy. The Veteran timely appealed that decision.
The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in April 2010; a transcript of that hearing is associated with the claims file.
The Board reopened service connection in a June 2010 decision and remanded that claim for further development. That development having been completed, the case has been returned to the Board for further appellate review at this time.
FINDINGS OF FACT
1. The Veteran's April 1996 enlistment examination does not include any notation regarding narcolepsy.
2. Clear and unmistakable evidence exists that the Veteran's narcolepsy symptomatology existed prior to military service.
3. Clear and unmistakable evidence does not exist that the Veteran's narcolepsy symptomatology was not aggravated during military service.
4. The Veteran is presumed sound with respect to his narcolepsy on entrance into service.
5. The Veteran was diagnosed with narcolepsy during military service.
6. The Veteran is currently diagnosed with narcolepsy with cataplexy.
7. Resolving the benefit of the doubt in favor of the Veteran, the evidence of record demonstrates that his narcolepsy has been chronic and continuous since discharge from service.
CONCLUSION OF LAW
The criteria establishing service connection for narcolepsy have been met. 38 U.S.C.A. §§ 1110, 1111, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(b) (2012).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Veterans Claims Assistance Act of 2000 (VCAA)
The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).
In light of the favorable decision grant service connection for narcolepsy, as discussed below, the Board finds that no further discussion of VCAA is necessary at this time.
Analysis
A Veteran is presumed to have been in sound condition when enrolled for service, except for any disease or injury noted at the time of enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b).
The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1); 38 U.S.C.A. §§ 1111, 1137.
Generally, a preexisting injury or disease will be considered to have been aggravated by active service where there was an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease; however, aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 306 (2012). If the disorder becomes worse during service and then improves due to in- service treatment to the point that it was no more disabling than it was at entrance into service, the disorder is not presumed to have been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996).
In order to rebut the presumption of sound condition under 38 U.S.C. § 1111, the government must show by clear and unmistakable evidence both that the disease or injury existed prior to service, and that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).
To satisfy the second requirement for rebutting the presumption of soundness, the government must rebut a statutory presumption of aggravation by showing, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006).
The clear and unmistakable evidentiary standard applies to the burden to rebut the presumption, but this standard does not require the absence of conflicting evidence. Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004).
If the presumption of soundness is not rebutted, the claim is one for service connection rather than compensation based on aggravation. See Wagner, supra.
In this case, review of the Veteran's April 1996 enlistment examination demonstrates that narcolepsy was not noted on examination when he was accepted for service; therefore the presumption of soundness is for application. Thus, in order to rebut the presumption of soundness, the Board must find clear and unmistakable evidence of both pre-existence and non-aggravation. See Wagner, supra.
In this case, the Board notes previously it found evidence of pre-existence, as noted in the June 2010 remand order. Additionally, the Veteran, particularly in the 1998 Medical Board Examination, gave a history of having daytime somnolence in high school but was otherwise able to function well. At other places in the record, particularly more recent statements, the Veteran indicated that he had symptoms and problems with daytime sleepiness prior to entering the military, but that in the military those problems worsened. On the basis of this medical history and other evidence of record, the Board finds that there is clear and unmistakable evidence of record to demonstrate that the Veteran's narcolepsy existed prior to service.
However, as the Veteran's statements and the 1998 Medical Board Examination notation of service aggravation demonstrate, it appears that there was some service aggravation of that disorder. Given that it appears that there is not clear and unmistakable evidence of non-aggravation during service, the Board finds that the presumption of soundness cannot be rebutted in this case. Accordingly, the Veteran is presumed sound and this case is one for service connection and not for aggravation. See 38 U.S.C.A. § 1111; Wagner, supra.
Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).
Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.
Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).
In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).
"[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").
"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).
For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b).
Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012).
In this case, it is clear that in the Veteran's 1998 Medical Board Examination, he was diagnosed with narcolepsy during military service. Moreover, review of the Veteran's post-service treatment records demonstrates that he is currently diagnosed with narcolepsy with cataplexy as recently as April 2010.
The Veteran has stated throughout the appeal period that he has had narcolepsy since he was diagnosed in service with that disorder. Additional statements from the Veteran's mother and his friend, S.C., demonstrate that since discharge from service they have witnessed the Veteran fall asleep while driving and while having conversations with them.
The Board finds such statements to be highly competent, credible and probative in this case. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue).
While the Board notes that the VA examiner in the December 2010 examination stated that the Veteran's narcolepsy pre-existed his service and was not aggravated by service, given the presumption of soundness as discussed above, such an opinion does not address the relevant issue in this case and has no probative value.
Moreover, a private physician noted in the June 2008 South Georgia Medical Center discharge summary that the Veteran had a history of narcolepsy, but that "certainly one has to wonder if perhaps the syncope is secondary to cardiac arrhythmias." Such an opinion does not directly address the relevant issue in this case and is also speculative in nature. See Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992) (doctor's letter stating probability in terms of "may or may not" was speculative). Thus, the Board finds very little probative value can be attributed to that opinion regarding etiology and whether such disorder had onset during, or is otherwise related to, military service.
In light of the Veteran, his mother, and his friend's highly competent, credible and probative lay statements regarding chronicity and continuity since discharge from service, and by resolving the benefit of the doubt in his favor, the Board finds that the Veteran's narcolepsy was diagnosed during military service and has been chronic and continuous since that time.
Accordingly, the Board finds that service connection for narcolepsy is warranted on the evidence of record at this time. See 38 C.F.R. §§ 3.102, 3.303(b). In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).
ORDER
Service connection for narcolepsy is granted.
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J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs